2008 WI APP 189
court of appeals of
published opinion
Case No.: |
2008AP778-CR |
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Complete Title of Case: |
†Petition for Review Filed |
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State of Plaintiff-Respondent, v. Rodney O. Harris, Defendant-Appellant.† |
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Opinion Filed: |
November 25, 2008 |
Submitted on Briefs: |
November 11, 2008 |
Oral Argument: |
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JUDGES: |
Fine, Kessler and Brennan, JJ. |
Concurred: |
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Dissented: |
Kessler, J |
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Appellant |
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ATTORNEYS: |
On behalf of the defendant-appellant, the cause was
submitted on the briefs of Ellen Henak, assistant state public defender of |
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Respondent |
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ATTORNEYS: |
On behalf of the plaintiff-respondent, the cause was submitted on the brief of J.V. Van Hollen, attorney general and Warren D. Weinstein, assistant attorney general. |
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2008 WI APP 189
COURT OF APPEALS DECISION DATED AND FILED November 25, 2008 David
R. Schanker Clerk of Court of Appeals |
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NOTICE |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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Appeal No. |
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STATE OF |
IN COURT OF APPEALS |
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State of Plaintiff-Respondent, v. Rodney O. Harris, Defendant-Appellant. |
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APPEAL
from orders of the circuit court for
Before Fine, Kessler and Brennan, JJ.
¶1 FINE, J. Rodney O. Harris appeals the circuit court’s order reconfining him to prison and directing that there be a period of extended supervision following the period of reconfinement. He also appeals the circuit court’s order denying his “postconviction motion” in connection with the reconfinement order. He claims that the circuit court did not have the authority to make a condition of that extended supervision that he have no contact with the latest of his domestic-violence victims. We disagree and, accordingly, affirm.
I.
¶2 Although originally charged with substantial battery as an habitual criminal, see Wis. Stat. §§ 940.19(2) & 939.62, the habitual-criminality aspect was dropped and Harris pled guilty to substantial battery. The circuit court sentenced Harris to imprisonment for four years and six months, with an initial confinement of two years, followed by extended supervision for two years and six months. See Wis. Stat. § 973.01(1) & (2) (imprisonment is made up of a term of initial confinement followed by a period of extended supervision). The substantial-battery charge was premised on Harris having beaten Tonya B., the mother of his children. As a condition of Harris’s extended supervision, the sentencing court directed that he “have no contact with” Ms. B., but allowed him “to have third party contact to arrange for child visitation.”
¶3 Harris served his period of initial confinement and was
released on extended supervision. He did
not comply with its conditions and his extended supervision was revoked. Among the violations were absconding from
supervision by not only not keeping an appointment with his supervising agent
but also by going to West Virginia without a travel permit and without his agent’s
permission. More serious, when Harris
was in
¶4 In accord with Wis.
Stat. § 302.113(9)(am), Harris, after being extradited to
If the extended supervision of the person is revoked, the person shall be returned to the circuit court for the county in which the person was convicted of the offense for which he or she was on extended supervision, and the court shall order the person to be returned to prison for any specified period of time that does not exceed the time remaining on the bifurcated sentence.
The time remaining on Harris’s bifurcated sentence was two years, six months, and five days. Although both the State and the Department of Corrections recommended that Harris be reconfined for that maximum period, the circuit court ordered that he be reconfined for all but four months, with those four months being extended supervision following the reconfinement period. See § 302.113(9)(b) (“A person who is returned to prison after revocation of extended supervision shall be incarcerated for the entire period of time specified by the court under par. (am).… If a person is returned to prison under par. (am) for a period of time that is less than the time remaining on the bifurcated sentence, the person shall be released to extended supervision after he or she has served the period of time specified by the court under par. (am).”).
¶5 The nub of both the reconfinement hearing and the original sentencing, the transcript of which the reconfinement court read, was on Harris’s problem with “anger management.” Indeed, at the original sentencing, Harris told the sentencing court that he had “been through the system several times,” and that he had “a big problem, you know, with temper.” Harris told the reconfinement court that he wanted “to get some type of help and focus on my life before someone ends up battered bad.”
¶6 The reconfinement court recognized Harris’s “long history of
domestic violence” and opined that what he did to Emma J. in
II.
¶7 The crux of Harris’s complaint about the condition of extended supervision that he not have contact with the woman he battered and cut in West Virginia is that the statutes do not expressly provide for it. Although it is true that there is nothing that says in haec verba that the reconfinement court may impose a condition of extended supervision that was not imposed by the original sentencing court (unless the Department or the defendant seeks a modification of the extended-supervision conditions, see Wis. Stat. § 302.113(7m)(a) (The defendant “or the department may petition the sentencing court to modify any conditions of extended supervision set by the court.”)), the statutes read as a whole clearly give the reconfinement court that authority because they do not prohibit it and that authority is essential to the fulfillment of the dual legislative (and judicial) goal that: (1) the public be protected from a criminal’s further predations; and (2) the criminal be helped with his or her rehabilitation.
¶8 “‘A reconfinement hearing is certainly akin to a sentencing
hearing,’” and, as a result, appellate review is limited to whether the
reconfinement court erroneously exercised its discretion. State v.
¶9 Unless there is an ambiguity or constitutional infirmity, we
apply statutes as they are written because that is generally the best evidence
of the legislature’s intent. State
ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58,
¶¶43–44, 271
¶10 As we have seen, Wis. Stat. § 302.113(9)(b) provides that if there is any time left on the defendant’s original bifurcated sentence following the incarceration ordered by the reconfinement court, that time is spent on extended supervision. Thus, § 302.113(9)(b) keeps intact the bifurcated-sentence scheme established by Wis. Stat. § 973.01. Aware that it is appropriate to ensure that a person released on extended supervision should have supervision and should be subject to conditions conducive to both the public safety and the defendant’s rehabilitation, the legislature gave the sentencing court authority to impose conditions of extended supervision: “Whenever the court imposes a bifurcated sentence under sub. (1), the court may impose conditions upon the term of extended supervision.” Sec. 973.01(5). Although § 973.01(5) refers to § 973.01(1), which grants circuit courts the power to impose bifurcated sentences, we conclude that it indubitably follows that the reconfinement court has the same authority to impose conditions of extended supervision that follows the period of reconfinement as an original sentencing court has to impose conditions on the extended supervision that follows the period of initial confinement.
¶11 First, a reconfinement hearing is not only “‘akin to a sentencing hearing,’” Walker, 2008 WI 34, ¶13, 308 Wis. 2d at 677, 747 N.W.2d at 678 (quoted source omitted), it is a sentencing in the sense that it deprives the defendant of his or her liberty, see State v. Swiams, 2004 WI App 217, ¶¶17, 22, 277 Wis. 2d 400, 415–416, 418, 690 N.W.2d 452, 459–460, 461 (“[A] hearing to determine whether a person should be sent to prison (or returned to prison) and for how long is a ‘sentencing.’”).
¶12 Second, as we have seen, the reconfinement procedure
specifically recognizes that there may be a period of extended supervision
following a reconfinement-ordered incarceration. Wis.
Stat. § 302.113(9)(b). “[E]xtended
supervision is akin to probation.” State
v. Agosto, 2008 WI App 149, ¶11, ___
¶13 It makes no sense to say, as does Harris and the Dissent, that
the extended supervision following a period of initial confinement imposed
under Wis. Stat. § 973.01 may be
subject to court-ordered conditions, but that the extended supervision
following a period of reconfinement imposed under Wis. Stat. § 302.113(9)(am) may not be subject to
court-ordered conditions that reflect changed circumstances. It would also, as we have seen, be contrary
to the legislative goals of enabling the circuit court to both protect the
public and to facilitate the defendant’s rehabilitation. Indeed, that the reconfinement court in
reality imposes what is, in effect, a new bifurcated sentence was specifically
recognized by the Criminal Penalties Study Committee, which advised the
legislature in connection with
¶14 As
In making a reconfinement decision, “we expect that circuit courts will usually consider [the recommendation from DOC,] the nature and severity of the original offense, the [defendant]’s institutional conduct record, as well as the amount of incarceration necessary to protect the public from the risk of further criminal activity, taking into account the defendant’s conduct and the nature of the violation of terms and conditions during extended supervision.” “The reconfinement period imposed should be the minimum amount that is necessary to protect the public, to prevent depreciation of the seriousness of the offense, and to meet the defendant’s rehabilitative needs.” Circuit courts may also consider “‘what balance of time between renewed incarceration and further [ ] [extended] supervision is most likely to protect society and at the same time to facilitate the violator’s transition between prison and unconditional freedom.’” Other factors that may be relevant include “consideration of the defendant’s record, attitude, and capacity for rehabilitation, and the rehabilitative goals to be accomplished by imprisonment for the time period in question in relation to the time left on the violator’s original sentence.”
¶15 Where, as here, a defendant with anger-management problems and
a history of domestic violence has his or her extended supervision revoked
because of a domestic-violence relapse it makes perfect sense, especially when
the original sentence recognized the need to protect the victim of the original
domestic-violence episode, for the reconfinement court to seek to protect the
new domestic-violence victim by making it a condition of the new period of
extended supervision that the defendant have no contact with that new
victim. As our long quotation from
¶16 As noted, Wis. Stat.
§ 302.113(7m)(a) says that “the department may petition the sentencing court to
modify any conditions of extended supervision set by the court.” Thus, if the Department sees something in its
supervision of the defendant that requires an adjustment of the conditions of
extended supervision, it can ask the court to make the required adjustment. This can happen at any time, either before or
after the defendant is released on his or her initial extended supervision, or
after a reconfinement order following a revocation of that initial period of
extended supervision. Therefore, if we
were to reverse (or if the circuit court had determined that it lacked the
authority to impose a condition of the new period of extended supervision that
was designed to protect Harris’s new domestic-violence victim), the circuit
court would be authorized to impose the same condition on the Department’s
petition. See § 302.133(7m)(c) (“The court may conduct a hearing to
consider the petition. The court may
grant the petition in full or in part if it determines that the modification
would meet the needs of the department and the public and would be consistent
with the objectives of the person’s sentence.”). To require the parties to descend the
mountain only to climb it again would, under the circumstances here, result in
an “unreasonable and absurd” Sisyphean reading of the interrelated statutes and
would violate the important rule of statutory construction that tells us to
avoid tortured and twisted wheel-spinning requirements that lack a substantive
rationale. See State ex rel. Kalal,
2004 WI 58, ¶46, 271
¶17 Harris, however, contends that Hall requires the
opposite result because it held that the reconfinement court did not have the
authority to reconsider the original sentencing court’s determination that Hall
was not eligible for the Challenge Incarceration Program authorized by Wis. Stat. § 973.01(3m). Hall, 2007 WI App 168, ¶17, 304
¶18 The sentencing court in Hall had placed Hall on probation
and imposed but stayed a bifurcated sentence of two years of initial confinement
and three years of extended supervision.
Ibid. When Hall’s
probation was revoked he served his period of initial confinement and was then
released on extended supervision. Ibid. Hall then committed new crimes and was
sentenced for those crimes, with the new sentencing court determining that he
was eligible for both the Earned Release and Challenge Incarceration
programs.
¶19 Hall was brought to court for a reconfinement hearing in
connection with the revocation of his extended supervision in the first
case.
¶20 In ruling that the reconfinement court lacked the authority to determine whether Hall was eligible for the programs, we noted that the statutory bases for that authority, Wis. Stat. § 973.01(3m) and (3g), provided in each that: “When imposing a bifurcated sentence under this section on a person convicted of a crime” with certain exceptions not material here, “the court shall, as part of the exercise of its sentencing discretion, decide whether the person being sentenced is eligible or ineligible” for the program. In attempting to use Hall to bar the reconfinement court from imposing extended-supervision conditions not originally imposed by the sentencing court, Harris notes that, as we have already seen, § 973.01(5) similarly references the imposition of a bifurcated sentence under subsection (1) of § 973.01: “Whenever the court imposes a bifurcated sentence under sub. (1), the court may impose conditions upon the term of extended supervision.” Harris argues that this means that the authority of the reconfinement court to impose a new condition of extended supervision in the reconfinement order is as limited as the authority of the reconfinement court to determine whether the defendant is eligible for the Earned Release and Challenge Incarceration programs. This is a myopic reading of the statutory mosaic.
¶21 This case, unlike Hall, does not deal with the circuit court’s authority to determine whether a prisoner is eligible for programs authorized by the legislature in connection with the imposition of a bifurcated sentence under Wis. Stat. § 973.01(1) but, rather, what conditions are necessary components for the period of extended supervision that the defendant will be serving as a result of a reconfinement decision under Wis. Stat. § 302.113(9)(am) and (b). As Walker and its antecedents teach, a reconfinement hearing should meld with the original sentencing and the factors that the original sentencing court deemed significant. See Walker, 2008 WI 34, ¶19, 308 Wis. 2d at 680, 747 N.W.2d at 679–680 (“The parties are, therefore, encouraged to identify relevant information from the sentencing transcript or any other document and bring it to the circuit court’s attention, so the judge may then specifically review that information.”); State v. Brown, 2006 WI 131, ¶¶21, 38, 298 Wis. 2d 37, 50, 58, 725 N.W.2d 262, 268, 272 (Where the sentencing and reconfinement courts are the same, “the reconfinement hearing [is] a continuum of the sentencing hearing”; where the two courts are not the same, the reconfinement court should seek information about the nature of the original sentencing, including the sentencing transcript, which “is an important source of information on the defendant that discusses many of the factors that circuit courts should consider when making a reconfinement decision.”). Thus, it would be contrary to the original sentencing scheme for a reconfinement court to overrule a sentencing court’s determination that a defendant was not eligible for the Earned Release or Challenge Incarceration programs, especially because the defendant in that situation had extended supervision revoked because he or she did something bad while serving the extended-supervision part of the bifurcated sentence. But conditions under which the defendant will be out in the community cannot be frozen in time; indeed, the reconfinement court is especially directed to consider the defendant’s adjustment since the date of the original sentencing. Brown, 2006 WI 131, ¶45, 298 Wis. 2d at 61, 725 N.W.2d at 273 (The reconfinement court should consider the defendant’s “institutional conduct record, and the [defendant]’s conduct and the nature of the violation of terms and conditions during extended supervision, as well as the amount of incarceration necessary to protect the public from the risk of further criminal activity.”). That the defendant’s original extended supervision was revoked underscores the need for the possibility of new, more stringent conditions of the post-reconfinement extended supervision.
¶22 There is nothing in either the statutes or in the legislative
history that reveals the smallest quantum of intent to deprive the
reconfinement court of the authority to set new conditions in connection with
the extended-supervision part of the reconfinement order, especially when those
conditions are consistent with the original sentencing scheme and are needed to
both protect the public and to enhance the chances of the defendant’s
rehabilitation. See Sepulveda, 119
¶23 Significantly, if Harris were to prevail on this appeal and the Dissent’s view became the law, his victory would be Pyrrhic; a reconfinement court might very well eschew a period of extended supervision following the reconfinement term because the reconfinement court could then not adequately protect the public without the ability to impose necessary conditions reflecting changed circumstances. We affirm.
By the Court.—Orders affirmed.
No. |
2008AP778-CR(D) |
¶24 KESSLER, J. (dissenting). I agree with the majority’s implicit conclusion that the additional condition of extended supervision imposed by the reconfinement court was reasonable and appropriate. I disagree, however, that the plain language of the applicable statutes and applicable case law authorizes a reconfinement court to impose new conditions of extended supervision.
¶25 The only statute by which the legislature specifically authorized a court to impose conditions of extended supervision is Wis. Stat. § 973.01(5).[1] These conditions are imposed at sentencing. The statute governing extended supervision, Wis. Stat. § 302.113, specifically allows the Department of Corrections to add new conditions to the extended supervision. See § 302.113(7) (“The department may set conditions of extended supervision in addition to any conditions of extended supervision required under s. 302.116, if applicable, or set by the court under sub. (7m) or s. 973.01(5) if the conditions set by the department do not conflict with the court’s conditions.”) (emphasis added). In addition, the Department or the person subject to the conditions “may petition the sentencing court to modify any conditions of extended supervision set by the court.” Sec. 302.113(7m) (emphasis added).
¶26 Thus, we see that the legislature gave the Department, which
supervises extended supervision, the flexibility to impose new conditions
required by changed circumstances in extended supervision, where the new
conditions do not conflict with the original conditions set by the sentencing
court.[2] See
Wis. Stat. § 302.113(7). The legislature also allowed either the Department
or the inmate to petition the sentencing court to modify any extended
supervision conditions. See § 302.113(7m). What the legislature did not do was
explicitly authorize a court imposing a period of reconfinement to add
additional conditions to extended supervision on its own initiative (or at the
suggestion of the State, as occurred here).
We previously recognized that a reconfinement court’s discretion is
limited when we rejected a reconfinement court’s attempt to determine a
confined person’s eligibility for the Challenge Incarceration Program (CIP) or
the Earned Release Program (ERP). See State v. Hall, 2007 WI App 168, ¶15,
304
¶27 Reasonable people might conclude that a system allowing either
a sentencing court or a reconfinement
court to impose new conditions of extended supervision is both reasonable and
efficient. However, the legislature
limited the discretion of reconfinement courts and any change to the
reconfinement court’s authority must come from the legislature. We do not have the authority to grant the
reconfinement court authority under Wis.
Stat. § 302.113(9)(am) which the legislature chose not to
grant. See Seider v. O’Connell, 2000 WI 76, ¶80, 236
¶28 Indeed, as the majority notes, Harris’s victory might be Pyrrhic if this case were to be returned for a new reconfinement hearing, because it is highly likely the Department would promptly use its statutory authority to impose the same no-contact condition the reconfinement court here imposed. In that situation, Harris would have the right to move the trial court to set aside the condition, should he choose to do so. That is the scheme of condition change and review which the legislature established. We are bound by those legislative decisions.
¶29 Because I conclude the plain language of the statutes permits the Department, but not the reconfinement court, to impose new conditions of extended supervision, I respectfully dissent.
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[2] Thus, pursuant to Wis. Stat. § 302.113(7), the Department could have responded to Harris’s behavior on extended supervision by imposing the additional restriction at issue in this case.